Wednesday, 21 November 2012


Ferrari's desperation to take the Formula 1 Driver's World Championship 2012 to the final race in Brazil next month has caused them to take extraordinary measures. At the US Grand Prix, the penultimate event of the season, in Austin Texas, Fernando Alonso qualified 9th on the grid. His team mate, Felipe Massa, unusually out qualified him in 6th. Romain Grosjean, of Lotus, was then relegated 5 places as a result of an enforced gearbox change moving Alonso up one place on the starting grid to 8th.
Grosjean's predicament also had the consequential effect of moving Alonso from the uneven to the even starting side of the grid. The peculiarities of the Circuit of the Americas, newly created for this event, were such that the uneven side of the track was considered to be more slippery and therefore more difficult to get a satisfactory getaway from. Team calculations suggested that this disadvantage might mean the surrender of as much as 2 places at the start of the race. Desperate times called for hard nosed cunning.
The only way for Ferrari to improve Alonso's grid placing and also to move him to the advantageous side of the track was to effectively shunt Massa aside.
Shunted Aside

They achieved this before the race by blatantly taking advantage of a F1 rule designed to curb expenditure on equipment during the course of the season. The rule states:
Each driver may use no more than one gearbox for five consecutive events. Every unscheduled gearbox change will require the driver to drop five places on the grid at that meeting. Every subsequent unscheduled gearbox change will require the driver to drop five places on the grid.
Following the letter but not the spirit of the regulation, Ferrari broke a seal on Massa's gearbox and thereafter changed his gearbox. This action attracted the 5 place FIA penalty for Massa, moving him down to 11th on the grid and elevating Alonso by one place to 7th and onto the faster uneven numbered side of the track. Massa was screwed but Ferrari's 'higher goal' was achieved. Ingenious.
Massa 'generously' accepted this. It was apparently a team decision. What choice did Massa have in reality? In other Grand Prix previously he has moved aside to allow Alonso to pass at a crucial moment, following 'team orders'. He is seen as the inferior and supportive team mate, unthreatening to the team leader and there to do a job for the team. His 'acceptance' on this occasion almost certainly guaranteed his Ferrari drive for next season in spite of being consistently outperformed by Alonso, and by a considerable margin for the past 2 seasons.
Was Ferrari's move legal? Yes. It was within the rules and it was done openly. It does not compare with Benetton's deliberate and highly dangerous crashing of Nelson Piquet Jnr's car at the Singapore Grand Prix in 2008, an outrageous and much vilified manoeuvre designed to achieve a safety car deployment for the benefit of Alonso (again - although he was unaware of the ploy).  Ferrari's action was however highly cynical. It was a ploy taken from the 'win at all costs playbook'. Greg Chappell would have heartily approved. We should not applaud.
The consequence of this manoeuvre was that in transferring Alonso up the grid and across the track they caused other competitors to find themselves shifted in the opposite direction. So Grosjean, Hulkenberg and Senna now found themselves disadvantaged on the slippery starting side.
What would have happened if other teams had pulled similar stunts? The integrity of the race would have been shot to pieces. Was it anyway? This is not the same as F1 teams' constant probing for the slightest technical advantage on the edges of the rules. This was not within the spirit of the game. Unfortunately no such rule exists in F1 and the regulation was not drawn tightly enough.
Ferrari were able to profit because they have the resources to not to bat an eyelid at the damaging of and changing of a gearbox. Other more cash strapped competitors might not have the same possibilities. The rulebook needs revising swiftly. There is no sporting glory in this.

Sporting Glory? 

Fortunately for Ferrari and F1 none of the 'big boys' was shunted across the track. Martin Whitmarsh of McLaren took a sanguine approach, but Ferrari's move did not affect McLaren and they did go on to win the race through Lewis Hamilton. He mused
"Sadly it didn't impact on us at all - we were on the slow side of the grid and stayed on it - but if I had earned a place on the fast side of the grid and that had put me on to the slow side I would have been pretty exercised about it."

Thursday, 15 November 2012

12 Hours in Cell for 'Late Tackle'

For 25 years in the relaxed atmosphere of Bermuda ex international rugby union players have gathered for the Bermuda World Classic tournament - an annual series of 10 international matches. This year's tournament features, inter alia, Shane Williams and Percy Montgomery.
The general camaraderie and bonhomie has lately been shattered by the arrest of former Springbok Prop Robbie Kempson on suspicion of assault. Kempson spent 12 hours in Police Custody before being released, initially on bail. The matter was being reviewed by a prosecutor, but it has subsequently been announced that Kempson will not face charges.
Kempson is alleged to have charged into the back of USA Fly Half Leif Gibson (34). The USA say that this was an off the ball incident. Kempson denies this and asserts that it was part and parcel of a contact sport. Gibson was removed on a stretcher with a neck brace.
Player Feared the Worst

Kempson was not sanctioned during the game and has not been cited since.
Kempson does have 'previous'. In 2003 he was cited for a late and dangerous high tackle in an international v Australia which caused a 'spinal concussion' and banned for 4 weeks. Kempson appeared in 37 tests between 1998 and 2003.
Why did the Police become involved?
The american team and the player complained to the Police. The coach in fact rather dramatically suggested publicly that Gibson might not play again as a result of a significant spinal injury. Gibson was in fact up and walking at the time, albeit in extreme discomfort.
The prosecutor decided that there was nothing which took this situation out of the ordinary context of a contact sport.
In the UK criminal prosecutions are reserved for those situations where the 'conduct is sufficiently grave to be properly categorised as criminal'. Relevant factors according to Woolf LJ in Barnes might include, inter alia, the sport and level of the participants, the nature of the act, the degree of force used, the resultant injury or consequent risk of injury, and the intention of the perpetrator. Prosecutions are rare. Nonetheless those engaging in off the ball incidents are flirting with a danger which goes beyond the wrath of the governing body. I make no judgement about Kempson, I have not seen any replays or statements.
As we have seen in a number of recent cases, interested 3rd parties, with whatever agenda, can complain and involve the Police. Even if charges do not result, it can be a very uncomfortable place for the accused player whether guilty or not.
Postscript 16.11.12
I am urged by comments to consider the legal liability of such as Kempson if in fact the conduct alleged ie an assault off the ball having nothing to do with the play were to be established. Criminal liability is dealt with above. Criminal proceedings are extremely rare.
Civil liability might be established.
Kempson might, have committed the tort of battery (trespass to the person). This is difficult to prove, requiring an intent to make contact with the victim. Injury would not have to be foreseeable or intended.
Most actions are in negligence. The player owes a duty of car to his fellow participant. He must take reasonable care in all the circumstances to avoid causing injury to another  player. The rules, conventions and playing abilities of those participating are relevant factors in assessing what is reasonable. Nonetheless the test itself does not change whatever the playing abilities of the relevant parties. A momentary mistake or judgement error will not ordinarily found liability. Reckless conduct almost certainly will. The Paul Elliott v Dean Saunders case is perhaps the most well known. Elliott suffered a career ending knee injury as a consequence of a tackle with Dean Saunders. The trial judge found that Saunders had not acted dangerously or recklessly and accepted Saunders case that the contact and consequent injury was an accident as Saunders himself tried to avoid injuring himself.
(Acknowledgement to Sports Law 4th Edition Gardiner & Others 2012)

Saturday, 3 November 2012

Prosecuting for a Sports Governing Body - The Lecture

The Audience (100 delegates at BASL/DMU)
NB these are just my opinions.
Ordinarily my audience is either 3 or 12 depending on the type of tribunal. I am not normally required to conform to the 'chess clock system' beloved of CAS either (this was supposed to last 20 minutes - apologies). That system used by CAS on occasion to police verbose advocates and to ensure completion of proceedings within the day. Advocates have to divide their allotted time as they see fit between examination and submissions.

First thing that strikes me about the title subject is the diversity of panels that one appears before. The greatest change is the influence of Social Media, whether its misuse or evidentially. John Terry's current travails began with YouTube footage complained about to the Police by an off duty officer. Social Media seems to liberate people of their good sense and judgement in a forum where they should be most on their guard. Much of the evidence thus enters the public arena on a massive scale, often instantaneously causing enormous complications for sporting bodies and their prosecutors. A good example would be the Ashley Cole tweet (about the FA) which was swiftly deleted but retweeted nonetheless thousands of times in a matter of moments.
Just this week footage emerged and toured the internet of a Chelsea fan apparently making a 'monkey gesture' to a black MU player. The club and the FA are instantly obliged to confront the issue and to act - the debate had already begun.
The Intrusion of Law and Lawyers
A delegate reminded me of the term 'sporting specificity'. It was after all a room full of lawyers!
My first sporting prosecution was at the BSA. The Chairman of the Panel was a man who had seemingly devoted his entire life to the sport. He was lectured by a certain type of lawyer (I am constrained by friendship from putting a geographical description to this) who insisted on a discourse of case law and the definition of 'disrepute'. Incidentally he handed out business cards in a silver flip tin ('b...h!). A significant amount of time was spent dealing with irrelevant 'legalistic' considerations. No doubt his client was extremely impressed... until the unanimous verdict.
Question of Balance
It was tricky to gauge how much I had to deal with the defence arguments and how much I could trust the Panel to ignore them. Had I known the Panel members, as I would with the majority of Crown Court judges I appear before, it would have been a simpler task. Given the private nature of Sports Disciplinary Tribunals, this familiarity is much harder to acquire.
The Rule Book
The naivety of many sports governing bodies (not yours!) with regard to the drafting of the rules provides an endless source of work and trouble for governing bodies and an equally endless source of material for lawyers.
Arsene Wenger ungenerously ventured the following opinion this week 'If it becomes a sport to make the lawyers rich, I am not a fan of it'.
Just this once I have to take issue with my favourite manager.

One Sports Club/One League
Some while back I was asked to assist a sports club who were at loggerheads with their league. The approach of both sides had created an entrenched situation to the detriment of both.
The league had a strict liability policy with regard to playing ineligible players. Fair enough. The relevant player had been with them forever. Finding himself without a game he played in another lower league without telling anybody and without realising that he was causing any offence. The original club were blissfully unaware. He then played several further  games for them.
The League rule book said that the player could only do this with their prior permission and that he would then have to re - register with them. The sanction, following the rules, was the loss of all points from those further matches. This punishment would consign the club to relegation. In reality the League had no desire to relegate the club, one of their best terms of finances, facilities and general benefit to the League, but they believed that their rules allowed no room for manoeuvre and no scope for mitigation.
I was not allowed to be on the record. I was not allowed to attend any hearing. My existence was not to be disclosed. The club feared that the public intervention of a lawyer would only antagonise the league and inflame the situation. They still hoped for a gentlemanly solution even though they had lost the hearing.
This was rather bad for my own PR.
 Nonetheless I was able to find a way out using the inflexibility of the rule book against itself. There was a provision for new rules where an existing situation was not covered by them. There was a way out that they could not find themselves.
There are 2 points. Participation with sports governing bodies and tribunals requires flexible thinking and the ability to adapt. Rules need to be drafted with a clear understanding of their consequences and occasionally governing bodies have to be helped out of predicaments of their own making.
Recent Events
Football is a limitless source of examples of the good, bad and the ugly.
The FA finds itself buffeted on a daily basis by events.
There is an interesting comparison to be made between 'Suarez' and 'Terry' with regard to the intervention of the Police.
Suarez received twice the punishment, in terms of games, as Terry due multiple offences. He was dealt with relatively swiftly and the matter was over, apart from the PR disaster which LFC engaged in thereafter. There was no complaint to the Police and consequently no criminal proceedings.
Terry, for seemingly arbitrary reasons was prosecuted because an off duty and uninvolved officer complained. The ramifications? A saga to rival 'Peyton Place' (for younger readers 'Downton' perhaps). New developments and consequences on a daily basis often flowing from a decision which was outside of the FA's control. The FA was removed from the driving seat and has been struggling to regain the initiative ever since.
The FA case was delayed by primacy of criminal proceedings, and then by Terry's successful application to adjourn until after the Euros. The FA lost its captain, its manager and its preparation time pre Euros. Football's reputation was dragged through the mud for 12 months.
Compare this with the latest situation - Mark Clattenberg. There now seems to a change of policy and apparently now we can have simultaneous investigations. I sense trouble ahead. What is the policy?
I know that the MC matter only involved the Police after a complaint 24 hours later by the Society of Black Lawyers. I was there when Peter Herbert announced this publicly. Whatever his motives it seems to me that any pressure group could invite Police investigation to highlight their cause or grievance, but this seems to be a very poor determining factor for launching criminal investigations. I sincerely hope that the FA and the Police are working on a Protocol to address this issue in future (Douglas?)
Following Terry's acquittal the FA found itself unfairly under more pressure. There was a sense that Terry was 'getting away with it'. The FA was chastised by the media and commentators for the delay - this was unfair.
The FA were then criticised by, amongst others, black players for the sanctions imposed by the Independent Regulatory Commission (is the process sufficiently independent - a question for another day?).
They were also criticised for publicly stating through the FA prosecution (as they had done with Suarez too) that they were not saying that Terry was a racist per se. In my view this was a definite mistake. It allowed the FA to be portrayed as 'out of touch' and to appear to be standing up for Terry (and Suarez). Many have said that such a stance is incompatible with the use of racist language. Given that they did not need to prove that Terry/Suarez  was racist I cannot understand the decision that was made to take this approach. It was a flase move which continues to haunt them as evidenced by the Kick It Out protests.

In this media dominated age, tactical decisions have consequences far beyond the merits of the tribunal hearing.
Use of Evidence
We had expert lip readers. We had dispositions on the significance of latin american utterances. Is this still football?
New Evidence
The FA hit Terry with fresh 'similar fact evidence' using footage of his lashing out at an opponent in the Barcelona CL Semi final this year as evidence to counter the defence assertion that Terry has 'preternatural reserves of self control'.
Ashley Cole was 'discredited' because a trawl through the email traffic showed 'the evolution' of his evidence.
Cole was interviewed with 2 note takers. Those notes did not accord. In future such interviews will have to be recorded.
It emerged that the FA does not have an established system, procedure or protocol for unused material. Considerable time was lost during the tribunal collating and disclosing hundreds of pages of material at a very late stage. All sporting bodies with significant throughput of  disciplinary matters will need to address these issues.
An Honest Prosecution
Laidlaw QC for the FA Prosecution only invited a conviction against Terry if the Panel found that he had used the offending words as an insult. A flexible and just approach.
Standard of Proof
FA rules have been rewritten since the Terry offence. This may be a common occurrence where there has been substantial delay.  He was tried on the old standard (more difficult to prove). FA standard now is the civil balance of probabilities. They have made things easier for themselves. The previous test was a flexible standard where the 'more serious the allegation the greater the burden of evidence required to prove the matter'.
The End is Nigh
I could go on but the Andy Gray version of the Chess Clock is flying above my head. Please feel free to comment or to contact me at

UPDATE 13.11.12
The Metropolitan Police have announced tonight that there is no evidence and no victim in respect of the Mark Clattenberg situation. The only complainant was Peter Herbert (see above). Now the FA needs to respond swiftly, conclude its own investigation and make the right decision. Simple.